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![handle is hein.slavery/ssactsengr0164 and id is 1 raw text is: ROBINSON V. SMYTH
ROBINSON V. SMYTH. June 3d, 1799.
The Court will not put off a trial on account of the absence of a material witness, if
by his evidence the defence of slavery is intended to be established.
Shepherd Serjt. moved to put off the trial in this case on account of the absence
of a material witness. He stated that the action was brought for wages supposed to
be due to the Plaintiff as a seaman, upon a voyage from the West Indies to London,
and that the defence to be established by the evidence of the absent witness, was that
the Plaintiff was slave to the Defendant who had paid a valuable consideration
for him.
Sed per Curiam. This is an odious defence, to which the Court will give no.
assistance. If the Defendant were to offer to put it on the record, we should not give
him a day's time. It is as much a denial of justice as the plea of alien enemy, which
is always discouraged by the Court.
Shepherd took nothing by his motion.
[455] SCUDAMORE AND OTHERS V. STRATTON AND OTHERS,
Executors of T. Rothley. June 3d, 1799.
If a lease for 99 years determinable on 3 lives be conveyed in trust for A. for
life, and A. covenant to use his utmost endeavours, as often as any of the persons
on whose lives .the premises are held, shall die, to renew the same by purchasing of
the lord of the fee a new life in the room of such as shall fail, it is no breach of the
covenant, if, upon one of the lives failing he procure a renewal upon his own life.
Performance pleaded otherwise than in the terms of the covenant, is bad, even on
general demurrer.
Covenant. The declaration stated that one Margaret Gardner was possessed of
certain premises for the residue of a term of ninety-nine years determinable on the
deaths of certain persons then living, and being so possessed, by indenture dated the
7th of September 1770 between the said M. Gardner of the first part T. Rothley
of the second part and the Plaintiffs of the third part reciting that M. Gardner was
possessed of a lease of parcel of the said premises determinable on the deaths of
Anne Foy and J. Chandler and of a lease of certain other parts determinable on the
deaths of Anne Gardner the said M. Gardner and Seymour Love that a marriage was
agreed upon between the said M. Gardner and T. Rothley and that the said leases
should be assigned to trustees upon trust, it was witnessed that the said M. Gardner
with the consent of T. Rothley assigned the said leases to the Plaintiffs in trust among
other things for the said T. Rothley for his life ; that T. Rothley covenanted with the
Plaintiffs that as often as any of the persons on whose lives the premises were then
held or should be held from the time being should die, he would forthwith use his
utmost endeavours to renew the same premises respectively with the lords of the fees
thereof by purchasing of them new lives or a new life therein respectively and such
further terms estates and interest therein as before mentioned determinable on some
other new lives or a new life in the room of such lives or life as should so happen to
die as aforesaid, and to procure new leases to be granted thereof by the said lords
respectively to the said Plaintiffs upon the trusts in the indenture mentioned and that
he would pay the fines or consideration money of the renewals and the expences of
the leases and other charges ; that the marriage took effect; that M. Rothley formerly
M. Gardner died in 1772 and that T. Rothley survived her. First breach that the
said T. Rothley did not after the death of the said M. Rothley his wife she being one
of the persons on whose lives the premises were held forthwith and as soon as he
reasonably might and ought to have done or at any time afterwards use his utmost
or any endeavours to renew the same premises respectively with the [456] lords of
the fees thereof by purchasing of them a new life therein respectively or such further
terms estates and interests as in the indenture mentioned determinable on some other
new life in the room of the said M. Rothley his wife so deceased as aforesaid and
procure new leases to be granted thereof by the said lords to the Plaintiffs upon the
trusts in the indenture mentioned, although he might and could have renewed &c. and
procure new leases &c. but neglected &c. Qn the 2d, 3d, and 4th breaches issueq
1007
I EO8. & PUI. 455.](ViewImageLocal?handle=hein.slavery/ssactsengr0164&div=1&collection=&method=preview&ext=.png&size=3)